Income Tax Officer-5(3), Lucknow v. Shri Rakesh Kumar Jaisawal, Lucknow

ITA 466/LKW/2013 | 2006-2007
Pronouncement Date: 28-04-2015 | Result: Dismissed

Appeal Details

RSA Number 46623714 RSA 2013
Assessee PAN AEMPJ6937R
Bench Lucknow
Appeal Number ITA 466/LKW/2013
Duration Of Justice 1 year(s) 10 month(s) 2 day(s)
Appellant Income Tax Officer-5(3), Lucknow
Respondent Shri Rakesh Kumar Jaisawal, Lucknow
Appeal Type Income Tax Appeal
Pronouncement Date 28-04-2015
Appeal Filed By Department
Order Result Dismissed
Bench Allotted B
Tribunal Order Date 28-04-2015
Date Of Final Hearing 17-03-2015
Next Hearing Date 17-03-2015
Assessment Year 2006-2007
Appeal Filed On 26-06-2013
Judgment Text
1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV JUDICIAL MEMBER AND SHRI A.K. GARODIA ACCOUNTANT MEMBER ITA NO.466/LKW/2013 ASSESSMENT YEAR:2006 - 07 SHRI RAKESH KUMAR JAISWAL 103/18 NEAR POST OFFICE SUNDER BAGH LUCKNOW. PAN:AEMPJ6937R VS INCOME TAX OFFICER - 5(3) LUCKNOW. (RESPONDENT) (APPELLANT) SHRI K. C. MEENA D. R. APPELLANT BY SHRI K. R. RASTOGI F.C.A. RESPONDENT BY 17/03/2015 DATE OF HEARING 28 /04/2015 DATE OF PRONOUNCEMENT O R D E R PER A. K. GARODIA A.M. THIS IS REVENUES APPEAL DIRECTED AGAINST THE ORDER PASSED BY LEARNED CIT(A) - II LUCKNOW DATED 07/03/2013 FOR THE ASSESSMENT YEAR 2006 - 2007. 2. THE GROUNDS RAISED BY THE REVENUE ARE AS UNDER: 1. THE LD. COMMISSIONER OF INCOME - TAX (APPEALS) HAS ERRED IN LAW AND ON FACT OF THE CASE IN ANNULLING THE ASSESSMENT ORDER PASSED BY THE A.O. U/S 143(2). THE CIT(A) HAS FAILED TO APPRECIATE THE FACTS THAT THE AO WAS LEFT WITH NO OPTION BUT TO COMPLETE THE ASSESS MENT U/S 144 ON THE BASIS OF MATERIAL AVAILABLE ON RECORD AFTER EXHAUSTING EVERY MEANS ENUMERATED IN THE PROVISIONS OF SECTION 282(1) OF THE INCOME - TAX ACT 1961 TO SERVE THE NOTICE. 2. THE LD. COMMISSIONER OF INCOME - TAX (APPEALS) HAS ERRED ON FACT IN DEL ETING THE ADDITION MADE BY THE AO OF RS.14 86 173/ - ON ACCOUNT OF UNEXPLAINED INVESTMENT IN PURCHASES. THE LD. CIT(A) FAILED TO APPRECIATE THE FACTS 2 THAT THE PURCHASES OF THE ASSESSEE AS PER TCS CERTIFICATES ARE MUCH HIGHER THAN THE PURCHASES DECLARED BY T HE ASSESSEE AND THE AO HAS JUDICIOUSLY WORKED OUT THE FIGURE OF UNEXPLAINED INVESTMENT IN PURCHASES. 3. THE LD. COMMISSIONER OF INCOME - TAX (APPEALS) HAS ERRED IN LAW AND ON FACT IN REDUCING THE ESTIMATED INCOME AT RS.3 45 620/ - AS AGAINST RS.9 00 000/ - . T HE LD. CIT(A) FAILED TO APPRECIATE THE FACT THAT THE AO HAS JUDICIOUSLY ESTIMATED THE INCOME ON THE BASIS OF MATERIAL AVAILABLE ON RECORDS. 4. THE LD. COMMISSIONER OF INCOME - TAX (APPEALS) HAS ERRED ON FACT IN DELETING THE ADDITION MADE BY THE AO OF RS.13 82 486/ - BY WAY OF DISALLOWANCES UNDER SECTION 40A(3) OF THE INCOME - TAX ACT. THE LD. CIT(A) HAS FAILED TO APPRECIATE THE FACTS THAT THE CA OF THE ASSESSEE HAS HIMSELF CERTIFIED IN HIS AUDIT REPORT THAT 'IT IS NOT POSSIBLE TO QUANTIFY THE AMOUNT INADMI SSIBLE U/S 40A(3)..........' IN VIEW OF ABOVE SUBMISSION THE A.O. HAS JUDICIOUSLY ESTIMATED THE DISALLOWANCES U/S 40A(3) OF THE INCOME - TAX ACT 1961. 3. LEARNED D.R. OF THE REVENUE SUPPORTED THE ASSESSMENT ORDER WHEREAS IT WAS SUBMITTED BY LEARNED A.R. OF THE ASSESSEE THAT IT IS ADMITTED POSITION THAT NOTICE U/S 143(2) WAS NOT SERVED ON THE ASSESSEE AND THEREFORE THE ASSESSMENT COMPLETED BY THE ASSESSING OFFICER U/S 143(3) IS NOT VALID. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIND THAT IN THE ASSESSMENT ORDER THE ASSESSING OFFICER HAS HIMSELF REPRODUCED THE REPORT OF THE NOTICE SERVER REGARDING SERVICE OF NOTICE U/S 143(2) AND 142(1). AS PER THIS REPORT OF NOTICE SERVER IT IS REP ORTED THAT THE ASSESSEE HAS SOLD THE HOUSE AND L EFT . THE CIT(A) HAS GIVEN A CLEAR FINDING IN PARA NO. 4(3) THAT NOTHING HAS BEEN BROUGHT ON RECORD THAT THE NOTICE U/S 143(2) WAS SERVED 3 ON THE ASSESSEE. WE ARE OF THE CONSIDERED OPINION THAT EVEN IF THE AS SESSEE HAS LEFT HIS LAST ADDRESS IN THAT SITUATION ALSO THERE ARE VARIOUS PRESCRIBED MODES OF SERVICE OF NOTICE SUCH AS PUBLICATION ETC. THE ASSESSING OFFICER COULD HAVE RESORTED TO SUCH BUT THIS HAS NOT BEEN DONE BY THE ASSESSING OFFICER. THEREFORE IT HAS TO BE ACCEPTED THAT THE ASSESSMENT U/S 143(3) WITHOUT SERVICE OF NOTICE TO THE ASSESSEE U/S 143(2) IS VOID AB INITIO AND THE SAME WAS RIGHTLY ANNULLED BY CIT(A). WE THEREFORE DECLINE TO INTERFERE IN THE ORDER OF CIT(A). GROUND NO. 1 IS REJECTE D. 5. REGARDING REMAINING GROUNDS OF THIS APPEAL OF THE REVENUE WE ARE OF THE CONSIDERED OPINION THAT NO ADJUDICATION IS CALLED FOR IN RESPECT OF THESE GROUNDS BECAUSE THE SAME ARE OF ACADEMIC INTEREST ONLY BECAUSE ONCE THE ASSESSMENT ITSELF IS ANNULLED NOTHING REMAINS TO BE DECIDED. 6. IN THE RESULT THE APPEAL OF THE REVENUE STANDS DISMISSED. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 28 /04/2015 *C.L.SINGH COPY OF THE ORDER FORWARDED TO : 1.THE APPELLANT 2.THE RESPONDENT. 3.CONCERNED CIT 4.THE CIT(A) 5.D.R. I.T.A.T. LUCKNOW ASSTT. REGISTRAR